Legal Ethics Opinion #1543
Advertising - Recommendation of Professional Employment: Attorney
Paying "Referral" Service for "Exclusive Rights" to All
Prospective Clients in Four Counties
You have presented a hypothetical situation in which a national,
nonprofit lawyer referral service ("Service") contacts an
attorney. In exchange for an annual $300 membership fee, the
Service offers to exclusively refer the attorney to individuals
needing representation in traffic matters in four Virginia
counties.
Through the membership application, the attorney authorizes the
Service to provide individuals with his name, address, and phone
number. The Service makes no other representation regarding the
attorney or the attorney's practice.
The Service indicates that it has given the attorney's name to
thirteen truckers. The attorney has represented four of the
thirteen truckers. In each case, the attorney negotiates the
fees to be charged, and the driver decides whether to hire the
attorney.
You have asked the committee to opine whether, under the facts of
the inquiry, (1) the attorney's "exclusive rights" to those
persons seeking representation in four counties violate the five
attorneys per region provision of LEO #1348, and (2) whether the
attorney's participation in the Service is otherwise permissible.
The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 2-101(A) which provides that a lawyer shall
not use or participate in the use of any form of public
communication if such communication contains a false, fraudulent,
misleading, or deceptive statement or claim; and DR 2-103(D)
which states that a lawyer shall not compensate or give anything
of value to a person or organization to recommend or secure his
employment by a client, or as a reward for having made a
recommendation resulting in his employment by a client, except
that he may pay for public communications permitted by DR 2-101
and the usual and reasonable fees or dues charged by a lawyer
referral service and any qualified legal services plan or
contract of legal services insurance as authorized by law,
provided that such communications of the service or plan are in
accordance with the standards of DR 2-101 or DR 2-103, as
appropriate.
You have appropriately recognized Legal Ethics Opinion #1348 as
providing basic parameters for the operation of a for-profit
lawyer referral service, including a requirement that there be a
minimum of five participating attorneys in each region in which
such a service operates. The committee is of the opinion that
the four counties constitute a "region", and the attorney's
"exclusive rights" under the described referral service would be
improper under DR 2-103(D) and the above-cited Legal Ethics
Opinion.
As to whether the attorney's participation in the lawyer referral
service is otherwise permissible, the committee does have other
concerns as to the proposed arrangement. Although the committee
is unclear as to the definition of "region", if, however, the
four counties constitute a "region," then the attorney's
"exclusive rights" would be improper as evincing access by a
single lawyer to more than a single position on the referral list
in his geographic region. Also, in order to avoid deception
under DR 2-101(A), the committee believes that disclosure by the
lawyer referral service's agents, of the fact that the
participating lawyers have paid a membership fee, as well as the
relationship between the service and the participating lawyers,
would be required. Finally, the committee believes that it would
be per se improper for a lawyer to participate in a lawyer
referral service which initiates contact with prospective
clients. See LEO #1348.
Committee Opinion
August 12, 1993